State Of Washington, Respondent V. Brandon Douglas Roberts, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, 	)
) 	No. 67414-5-1
Respondent, 	)
) 	DIVISION ONE
v. 	)
) 	UNPUBLISHED OPINION
BRANDON DOUGLAS ROBERTS, 	)
)
Appellant. 	) 	FILED: April 22,2013
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Grosse, J. — Under ER 803(a)(4), a statement made for the purpose of
medical diagnosis or treatment is admissible as an exception to the hearsay rule.
Here, the defendant's statements made to a nurse, physician, and social worker
were all made for the purpose of medical diagnosis and were therefore properly
admitted.
FACTS
Investigating a possible hit and run accident, police arrived at the home of
Brandon Roberts' parents, Steven and Kristie Hanson. 	Steven had telephoned
the police that he thought his son was involved in an accident. 	When the police
arrived, 	Roberts fled. 	While the officers were searching for Roberts, 	Kristie
showed police red marks and bruising on the neck of Melissa Cole, Roberts'
girlfriend. 	The police spoke with 	Cole and then arrested Roberts for felony
assault.
Cole was treated by paramedics at the scene. 	Kristie testified that she
encouraged Cole to go to the hospital because both the police and paramedics
said she should go. 	At the hospital Cole was evaluated by nurse Kerry Groves.
In response to Groves' questions, Cole stated that she had been choked by her

No. 67414-5-1/2
boyfriend. 	She complained of pain in the right side of her neck and in her cheek.
Cole was then seen by Dr. Neil Donner, who also testified that Cole stated she
had been choked and struck in the face by her boyfriend. 	Cole was next seen by
a 	social worker who also testified that Cole stated she was choked 	by 	her
boyfriend after they had an argument.
Roberts did 	not testify. 	Roberts' telephone calls made from jail were
admitted. 	One of those calls was to Cole after he was charged with second
degree assault. 	On the 	recording, 	Roberts asks, "[Wjhat's going on?" 	Cole
responded, "[Y]ou choked me, you choked me really hard." 	Roberts then stated,
"[D]on't say that on the phone." Cole did not testify at trial.
The 	jury found 	Roberts 	guilty of second 	degree 	assault. 	The 	court
sentenced him to a standard range sentence of six months confinement.
Roberts appeals. 	He contends that the court erred in admitting Cole's
prior statements to an emergency room nurse, a physician, and a social worker
on the grounds that the statements were made for the 	primary purpose of
medical diagnosis or treatment. 	Roberts contends Cole's statements were not
for medical diagnosis because they were made seven or more hours after the
incident and treatment by paramedics at the scene, and 	only after Cole had
signed a release of medical records form given to her by the police.
ANALYSIS
Under the 	Sixth 	Amendment, 	a 	defendant is guaranteed 	the 	right to
confront witnesses against him.1 	Admission of testimonial hearsay violates a
1 U.S. Const, 	amend. VI.

No. 67414-5-1/3
defendant's 	Sixth 	Amendment 	right of 	confrontation 	unless 	the 	witness 	is
unavailable and there was a prior opportunity to cross-examine with regard to the
statement.2 	It is essential to determine whether the statement is testimonial or
nontestimonial 	to 	determine 	whether 	it is 	subject 	to 	the 	limitations 	of the
confrontation clause. 	The United 	States Supreme Court did 	not 	provide an
authoritative definition of "testimonial" in Crawford v. Washington;3 however, in
Davis v. Washington, the Supreme Court did distinguish hearsay elicited in the
context of a police interrogation from that arising in other settings.4 	The Davis
Court held that a domestic abuse victim's statement identifying her assailant to a
911 operator in response to that operator's questions was not testimonial, where
the assailant was allegedly in the victim's home in violation of a no-contact order.
Davis characterized the statement as nontestimonial because the questioning
was done to enable police response to an ongoing emergency. 	The court held
that when the police are responsible for procuring a statement, confrontation
clause 	analysis 	requires 	the examination 	of the 	"primary 	purpose" 	of the
interrogation. 	Under 	this 	analysis, 	a 	statement 	will 	be considered 	to be
"testimonial" if the police questioned the declarant in order to obtain evidence for
the prosecution, as opposed to the need to meet an ongoing emergency.
In State v. O'Cain, we noted that the United States Supreme Court has
recently portrayed statements to medical personnel for purposes of diagnosis or
2 Crawford v. Washington. 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d
177(2004).
3 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
4 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).

No. 67414-5-1/4
treatment as nontestimonial.5 	Under ER 803(a)(4), a statement made for the
purpose of medical diagnosis or treatment is admissible as an exception to the
hearsay rule. 	Roberts contends that statements Cole made to 	a 	nurse, 	an
emergency physician, and a social worker were inadmissible hearsay statements
because 	there 	was 	no 	foundation 	establishing 	that 	the 	statements 	were
necessary for medical diagnosis or treatment, but rather done in furtherance of a
police prosecution.
Washington courts recognize that in cases of child abuse and domestic
violence, attributing fault to a particular abuser is relevant to medical diagnosis
and treatment.6 	In Sims, the court held that an assault victim's statements to a
social 	worker that the 	defendant 	was 	the 	person 	who 	assaulted 	her were
reasonably pertinent to her treatment, where the social worker testified that the
medical center had a policy of referring domestic violence victims to the social
work department and the social worker discussed a treatment plan with her that
included how to avoid threatening situations.7
5169 Wn. App. 228, 279 P.3d 926 (2012); see Michigan v. Bryant. _U.S. _ 	131
S. Ct. 1143, 1157 n.9, 179 L. Ed. 2d 93 (2011) (listing "Statements for Purposes
of Medical Diagnosis or Treatment" under federal rule of Evidence 803(4) as an
example of statements that are, "by their nature, made for a purpose other than
use in a prosecution") and Melendez-Diaz v. Massachusetts. 557 U.S. 305, 129
S. Ct. 2527, 2533 n.2, 174 L. Ed. 2d 314 (2009) (discussing cited cases: "Others
are simply irrelevant, since they involved medical reports created for treatment
purposes, which would not be testimonial under our decision today.).
* See State v. Sims. 77 Wn. App. 236, 239-40, 890 P.2d 521 (1995); State v.
Butler. 53 Wn. App. 214, 766 P.2d 505 (1989).
777 Wn. App. 236, 240, 890 P.2d 521 (1995).

No. 67414-5-1/5
Washington 	courts 	have 	also 	held 	that 	statements 	made 	to 	medical
personnel by victims of domestic violence are not testimonial.8 	In 	State v.
Sandoval, the court held that the identification of the perpetrator in domestic
violence cases is admissible since that person's identity may affect the treatment
for the victim-witness.9 	In Sandoval, the court held that statements to a medical
doctor were not testimonial if (1) they were made for purposes of diagnosis and
treatment, (2) there is no indication that the witness expected the statements to
be used at a trial, and (3) the medical caregiver is not employed by or working
with the prosecution.10 	And 	in 	State v. 	Moses, 	the trial court admitted 	the
physician's 	and 	the 	social 	worker's 	testimony 	regarding 	the 	victim's
declarations.11 	The physician testified that the medical examination took place
within 	hours 	of the 	assault 	and 	the 	physician 	asked 	questions 	to 	provide
treatment.12 	In determining whether statements made to health care providers
are testimonial, 	the focus 	of the inquiry is on the purpose of the declarant's
encounter with the health care provider.13 	In Moses, where the doctor had no
role 	in investigating the 	assault 	and 	was 	not working 	on 	behalf 	of or 	in
conjunction with the police or other governmental officials to develop testimony
for the prosecution, the circumstances indicated that the victim's statements were
made for the purpose of obtaining medical treatment for the victim. 	Here, Cole,
as the declarant, was seeking medical treatment. 	Roberts' mother testified that
8State v. Moses. 129 Wn. App. 718, 728-30, 119 P.3d 906 (2005).
9 137 Wn. App. 532, 537, 154 P.3d 271 (2007).
10 Sandoval. 137 Wn. App. at 537.
11 129 Wn. App. 718, 730-32, 119 P.3d 906 (2005).
12 Moses. 129 Wn. App. at 730.
13 Moses, 129 Wn. App. at 730.

No. 67414-5-1/6
she encouraged Cole to seek additional medical treatment, as did the police and
the paramedics who treated Cole at the scene.
The nurse, 	Kerry Groves, testified about statements Cole made to her
upon her arrival at the emergency room. 	Groves further testified that she worked
in the emergency room triaging patients and that her job was to obtain a full
history from a patient about what occurred. 	She also explained that she uses
this information to assess patients and work with doctors and social workers to
come up with a treatment plan for the patient. 	Groves then testified about her
specific interaction with Cole and stated that she observed visible injuries to
Cole's neck and face and that Cole said she received the injuries when her
boyfriend choked her with his hands. 	Clearly, the statements to the nurse were
made for the purpose of medical diagnosis and, as in Sims, would allow hospital
providers to assess the types of treatment plans or resources that would be
appropriate for the patient. 	The nurse's statements were properly admitted.
Cole's statements to the treating physician, Dr. Neil Donner, likewise fall
within the parameters of the medical diagnosis hearsay exception. 	Dr. Donner
testified that he asked Cole what had happened and she responded that she had
been 	assaulted, 	choked 	by 	her 	boyfriend 	with 	his 	hands. 	Dr. 	Donner
remembered asking 	if she was 	put into a choke hold or was strangled with
hands. 	He also testified that Cole exhibited external signs of trauma on the front
of her neck, although that in itself was insufficient to substantiate that it occurred
through strangulation. 	Cole also complained of pain on the left side of her face
where she was struck by her boyfriend. 	Cole was referred to a social worker for

No. 67414-5-1/7
a consultation. 	Dr. Donner's job was to address any medical concerns and the
referral to the social worker was to address all the other facets, including the
emotional aspects of the alleged assault and the patient's future safety. 	Thus,
the doctor's testimony was clearly admissible.
Finally, the social worker, Nathan Nelson, testified that he worked with the
doctors and nurses on cases involving social issues such as domestic violence.
Nelson testified that medical personnel referred patients to him for safety and any
follow-up 	care that might be needed. 	Cole told 	Nelson that she 	had 	been
assaulted by her boyfriend. 	In response to what Nelson's ultimate goal was, he
responded:
Basically, I want to - 	I'm getting a report from her so if the police
need that report for later purposes, and also to contact police if they
haven't been contacted.
But Nelson also testified that he was concerned about Cole's future safety and
whether she had a safe place to be. 	As in Sims, the statements here were made
to medical personnel who testified that the triage 	protocol included obtaining
information that would allow hospital providers to assess what types of treatment
plans or resources would be appropriate for the patient. The statements made to
Nelson 	were for Cole's 	medical 	diagnosis and 	treatment and 	were 	properly
admitted.14
Roberts 	also 	argues 	that 	the 	medical 	release 	form signed 	by Cole
changed the purpose of her statements from seeking medical treatment to aiding
14 Even if we were to find Nelson's testimony suspect because of his reference to
compiling 	a 	possible 	report for the 	police, 	any error 	in 	its admission 	was
harmless. 	See State v. Nist. 77 Wn.2d 227, 235, 461 P.3d 322 (1969) (Evidence
that is merely cumulative of convincing untainted evidence is harmless.).

No. 67414-5-1/8
the prosecution. 	Other than this form, which is not in the record, there is nothing
to indicate that Cole went to the hospital to offer evidence for the purpose of
prosecuting Roberts. 	The nurse, doctor, and social worker all testified that their
concern was the treatment and safety of Cole. 	The doctor's testimony that he
inquired 	into the type of strangulation that occurred was clearly for 	medical
diagnosis. 	There is no evidence that Cole thought her statements would be used
to initiate a criminal prosecution. 	The signing of the medical release form is not
sufficient to overcome this, especially here, where the form was not admitted as
an exhibit at trial and, when viewed by the trial court during argument objecting to
the testimony, was characterized by the court as a typical form used in all cases
involving crime victims.
Affirmed.
WE CONCUR:
A.J 	fJ 	tr.ckvr
8